GSB# 2001-0542, 2001-0559, 2001-0560, 2001-0561, 2001-0831, 2001-0908

UNION# 01F478, 01C400, 01C401, 01C402, 01B275, 01B298

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Wickett et al.)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Don Eady Paliare Roland Rosenberg Rothenstein LLP Barristers and Solicitors

FOR THE EMPLOYER

Mr. David Strang Acting Associate Director Management Board Secretariat

HEARING

April 20, 2004.

Decision

The grievances before me concern the discharge of six employees for the inappropriate use of the Employer’s e-mail system, contrary to Employer policies. Mr. R. Nadeau, a grievor, testified on April 14 and 15, 2004. At the hearing on April 20, the Union called its last witness and closed its case. An issue arose on that day with respect to certain reply evidence the Employer indicated it intended to call on April 29, 2004. The Employer gave notice that it intended to call a witness to contradict some aspects of Mr. Nadeau’s testimony in order to discredit Mr. Nadeau’s credibility. During cross-examination of Mr. Nadeau, counsel for the Employer did not challenge those aspects of Mr. Nadeau’s testimony which the Employer now wishes to contradict with a reply witness. Counsel submitted that it would only be fair to permit the Employer to call a witness to contradict Mr. Nadeau’s testimony so that I have the benefit of all relevant evidence in order to assess Mr. Nadeau’s credibility. Counsel submitted that the Union could recall Mr. Nadeau if it decided that it was necessary to do so and that the Employer would pay the Union for the costs associated with his attendance.

Counsel for the Union strenuously objected to the Employer being permitted to attack Mr. Nadeau’s testimony in this way when it did not alert him in some way during cross-examination that it did accept as credible certain aspects of his testimony and when it did not provide him with an opportunity to explain his version of the events. In counsel’s view, the failure of the Employer to comply with the rule in Browne v. Dunn must preclude the Employer from attacking Mr. Nadeau’s credibility by a witness in reply. Counsel argued that it would be unfair to Mr. Nadeau and the Union to permit the Employer to challenge Mr. Nadeau’s credibility in this manner.

After considering the submissions of counsel on this issue, it is my conclusion that in these circumstances the Employer cannot be permitted to call a witness in reply for the purpose of challenging Mr. Nadeau’s credibility on matters which it did not take issue with during his cross-examination. Given the material filed and some of the previous testimony, it appears that the Employer should not have been entirely surprised by what Mr. Nadeau testified to in chief. If the Employer was surprised, it could have at least indicated as much and requested an adjournment. It appears that subsequent to hearing Mr. Nadeau’s testimony the Employer contacted his former supervisor and on the basis of information then provided now wishes to call the supervisor to challenge aspects of Mr. Nadeau’s testimony. Mr. Nadeau lives in a relatively isolated community in northern Ontario and requires a day to travel to and a day to travel from Toronto. Mr. Nadeau currently has other employment. I agree with the Union’s position that it would be unfair to Mr. Nadeau and to the Union, apart from the issue of cost, to permit the Employer to call reply evidence to challenge Mr. Nadeau’s credibility in these circumstances when it did not comply with the rule in Browne v. Dunn and it cannot provide any justification for not doing so.

The Employer certainly is entitled to call proper reply evidence. It should advise the GSB and counsel for the Union if it intends to do so on April 29, 2004, as soon as reasonably possible.

Dated at Toronto, this 22nd day of April, 2004.